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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
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- Art. 32 FC
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- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
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- Art. 10a PRA
- Art. 11 PRA
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- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
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- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
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- Art. 59c PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- In a nutshell
- I. General information
- II. Administrative assistance in favor of the FDPIC (para. 1)
- III. Administrative assistance for the benefit of other authorities (para. 2)
- Bibliography
- Materials
In a nutshell
Art. 54 FADP governs administrative assistance between the FDPIC and other federal and cantonal authorities. Administrative assistance is of considerable importance for the fulfillment of the FDPIC's statutory tasks. It enables cooperation between the FDPIC and other federal and cantonal authorities and thus contributes significantly to the enforcement of data protection law. Para. 1 regulates the administrative assistance in favor of the FDPIC, which is necessary for the enforcement of the FADP. Para. 2 obliges the FDPIC to provide administrative assistance to other authorities. The authorities to which the FDPIC is obliged to provide administrative assistance are listed exhaustively in para. 2.
I. General information
A. Subject matter
1 Art. 54 FADP governs administrative assistance between the FDPIC and other federal and cantonal authorities. The provision is part of the FDPIC's administrative powers, which serve to enforce data protection. It also represents a concretization of Art. 58 para. 1 lit. b FADP. In para. 1, it regulates the administrative assistance in favor of the FDPIC, which is necessary for the enforcement of the FADP. Para. 2 obliges the FDPIC to provide administrative assistance to other authorities, which should enable these authorities to fulfill their respective legal tasks within the scope of application of the FADP.
2 Art. 44 para. 2 sentence 2 FC obliges the Confederation and the cantons to provide each other with administrative assistance. The obligation to provide administrative assistance is, on the one hand, a manifestation of the requirement in Art. 44 para. 1 FC that the authorities work together as partners in the federal state; the constitutional provision obliges the Confederation and the cantons to support and cooperate with each other in the performance of their tasks. On the other hand, it is an application of the mutual assistance obligation of Art. 44 para. 2 sentence 1 FC. Even before the totally revised Federal Constitution of 1999 came into force, the Federal Data Protection Commission described the fundamental duty of all authorities to cooperate with regard to information as an unwritten constitutional principle of Swiss law. This constitutional principle is now enshrined in positive law in Art. 44 para. 2 FC.
3 The constitutional provision must be concretized at the legislative level. Art. 54 FADP represents such a concretization insofar as administrative assistance between the FDPIC and cantonal authorities is concerned. It should be noted that Art. 44 FC only concerns administrative assistance between authorities of different municipalities and not between authorities of the same municipality. Art. 54 FADP therefore constitutes a separate legal basis with regard to administrative assistance between the FDPIC and other federal authorities.
4 The term "administrative assistance" is not clearly defined by law. Administrative assistance is generally understood as the mutual support of administrative units (which are not in a subordinate relationship with each other) in fulfilling their statutory duties by providing assistance that is not regulated by procedural law (civil, criminal or administrative procedural law) (see N. 15 ff.). They may or may not be related to administrative proceedings in the first instance. Assistance outside or in advance of administrative proceedings is also part of administrative assistance.
5 Administrative assistance generally covers all assistance with which a federal or cantonal administrative authority supports another federal or cantonal administrative authority in the performance of its statutory duties. In addition to the provision of information and data (informational administrative assistance), this also includes the provision of physical or technical resources (vehicles, premises, technical equipment, etc.). The term "administrative authority" is to be understood functionally and includes all legal and natural persons who are directly tasked with the fulfillment of public law duties of the Confederation, the cantons or the municipalities. In the context of Art. 54 FADP, the focus is on informational administrative assistance (see n. 13).
B. History of origin
6 Art. 54 FADP did not give rise to any discussion during the legislative process. Administrative assistance was undisputed as a necessary prerequisite for the FDPIC to fulfill his statutory duties. The preliminary draft (Art. 46 of the FADP) already contained a materially identical provision. Under the old FADP, the article on administrative assistance only obliged the FDPIC to cooperate with domestic and foreign data protection authorities (Art. 31 para. 1 lit. c aDSG). The extension of administrative assistance to all authorities as a result of the revision of the FADP is in line with the FDPIC's manifold expansion of powers under the revised FADP.
7 In the consultation procedure, individual cantons complained that the additional workload for the cantonal and communal authorities was not clear and that the information to be provided should be specified more precisely in the ordinance. Several participants from the business community argued that business or manufacturing secrets should not be disclosed as part of administrative assistance proceedings.
8 The provision on national administrative assistance (Art. 48 FADP) only had a few editorial changes in the draft decree compared to the preliminary draft. For example, the wording in para. 1 was amended to the effect that federal and cantonal authorities now disclose to the FDPIC the information and personal data required to fulfill its statutory duties. In the preliminary draft, the provision still required the authorities to disclose the information and personal data required for the enforcement of this Act. Para. 2 lit. a also underwent a minor editorial change, whereby the FDPIC now discloses information and personal data to the authorities responsible for data protection in Switzerland, insofar as this is necessary for the fulfillment of their statutory duties. The preliminary draft still limited the wording to the cantonal authorities responsible for data protection. In the subsequent deliberations in the Federal Assembly, national administrative assistance no longer gave rise to any discussion; the provision was adopted in the version of the draft decree without any material or editorial changes.
9 The fact that national administrative assistance was not the subject of any significant controversy can be attributed to several factors. Firstly, the official benefit of national administrative assistance for the fulfillment of statutory duties is undisputed. Accordingly, Poltier puts it simply and aptly: "[...] l'entraide relève de l'évidence [...]." The forms of cooperation and collaboration made possible by administrative assistance enable data protection to be enforced more effectively. On the other hand, the provision on national administrative assistance is also a provision that can be found in many other federal laws, where it also aims to fulfill the statutory duties of the respective authorities. The fact that the Federal Council speaks of a standard provision in the dispatch, which can also be found in many other federal laws, can at most be understood to mean that administrative assistance is widely recognized as an instrument in the federal state. In any case, there is no uniform formulation across the individual substantive laws (see n. 14). The individual provisions regulate the scope of administrative assistance too differently.
C. Purpose of the norm
10 The federalist structure of the state and the task-sharing organization of the administration result in a high degree of technical specialization of the individual authorities. This is associated with a factual and local restriction of jurisdiction, which constantly threatens to hinder the fulfillment of statutory tasks. Administrative assistance is used to overcome such jurisdictional restrictions by providing assistance. The FDPIC thus comprehensively supervises the application of federal data protection regulations. However, data protection issues also arise in connection with specific areas of law and subject matter in which, for example, another federal authority (FINMA, COMCO, etc.) is entrusted with supervision and enforcement. Administrative assistance is also indispensable due to the vertical division of powers between the Confederation and the cantons: For example, to enforce the FDPIC's orders pursuant to Art. 50 f. FADP, the cantonal enforcement authorities are generally involved (see Art. 50 para. 3 FADP). Administrative assistance enables the necessary exchange of information and cooperation between the authorities, whereby the fulfillment of legal mandates can be guaranteed despite the factual and local differentiation of official activities.
11 The purpose of administrative assistance is to ensure that public tasks are performed as optimally and efficiently as possible and thus aims to enable and promote effective government action. On the basis of Art. 54 FADP, the FDPIC can draw on the expertise and experience of other authorities when fulfilling his statutory duties. As the FDPIC may be confronted with a wide range of sector-specific issues, he is often dependent on information and support from other authorities in order to carry out investigations correctly and efficiently. Art. 54 FADP ensures this cooperation for the benefit of the FDPIC and thus contributes to the enforcement of data protection law.
12 Another important function of administrative assistance is the gathering of evidence. The information and documents that the FDPIC has received from other authorities as a result of administrative assistance for the establishment of the relevant facts can be used as evidence in first instance administrative proceedings by the FDPIC.
D. Forms of cooperation and significance
13 In practice, the forms of cooperation in the context of administrative assistance are manifold. In the context of the FADP, the focus is on informational administrative assistance. This includes the disclosure of factual and personal data for the purpose of supporting the FDPIC and vice versa by the FDPIC to other authorities and is expressly addressed in Art. 54 para. 1 and 2 FADP. In principle, all procedural acts that serve to clarify the facts (including measures of evidence) or enforcement measures can be considered as administrative assistance measures. As part of the clarification of facts, the focus is on internal administrative assistance such as the provision of information, the inspection of official files, the submission or procurement of official documents or other necessary documents, cooperation in the clarification of relevant facts or access to a database. Interviews or an inspection may also be carried out as measures of evidence. Administrative assistance in the context of enforcement measures relates to measures that serve to enforce an official order. Art. 50 para. 3 FADP explicitly addresses the FDPIC's administrative assistance measures of evidence and enforcement.
14 Together with legal assistance (see n. 15 ff.), administrative assistance is an indispensable prerequisite for ensuring a uniform legal area in Switzerland. Administrative assistance is of considerable importance for the fulfillment of the FDPIC's statutory tasks. Nevertheless, Bellanger's statement that national administrative assistance appears "[...] comme un parent pauvre du droit [...]" has lost none of its validity even today. This is due in particular to the fact that national administrative assistance is not uniformly regulated at federal level. The APA does address administrative assistance in Art. 43. However, this only concerns assistance in the enforcement of orders issued by the federal authorities that are not aimed at monetary payment or the provision of security. Administrative assistance in the area of fact-finding, on the other hand, does not fall under Art. 43 APA. There is no overarching regulation governing both the procedure and the rights and obligations of the parties involved. Consequently, administrative assistance is regulated at the level of the individual special laws. The scope of the obligation to provide administrative assistance differs in individual cases, depending on which special law is applicable. In the present case, the scope of the obligation to provide administrative assistance is primarily determined by the FADP, in particular Art. 54 para. 1 and 2 and Art. 50 para. 3 in conjunction with Art. 50 para. 1 FADP. para. 1 FADP. The scope of application and the modalities of administrative assistance remain to be specified in detail.
E. Delimitations
15 Administrative assistance between Swiss authorities (hereinafter: administrative assistance) must be distinguished from legal assistance on the one hand and international administrative assistance on the other. Administrative assistance can hardly be clearly distinguished from legal assistance. Nevertheless, the distinction is essential due to the associated legal effects. Both the choice of the applicable law - and thus the procedure - as well as the limits of the measures and the specific form of legal protection can depend on the classification. At the level of international administrative and legal assistance, the differences and their consequences are pronounced: for example, international legal assistance in criminal matters may fall within the scope of Art. 6 ECHR under special circumstances. An appeal to the Federal Supreme Court is only admissible in the case of international mutual assistance in criminal matters and administrative assistance in tax matters, which generally has a criminal prosecution purpose. With the exception of administrative assistance in tax matters, an appeal to the Federal Supreme Court is not permitted against decisions in the area of administrative assistance in international administrative assistance.
16 In order to differentiate between administrative and legal assistance, doctrine and case law are based on different criteria, whereby a combination of criteria is sometimes used for qualification. In particular, the following criteria can be mentioned:
Type or function of the authorities involved: If judicial authorities are involved, this is referred to as legal assistance. Administrative assistance, on the other hand, refers to administrative authorities.
Nature of the assisted proceedings (non-contentious or contentious proceedings or proceedings for the issuance of an order or appeal proceedings): Legal assistance covers forms of cooperation that relate to proceedings outside the administration. The latter take place before an authority that is external to the administration and institutionally independent of it. Legal assistance therefore mainly relates to (civil, criminal or administrative) procedural assistance in the context of court proceedings. A classic example is the enforcement of judgments. Administrative assistance, on the other hand, covers assistance between federal and cantonal administrative authorities that is provided outside of proceedings defined by procedural law. It therefore takes place within the framework of internal administrative procedures or outside of administrative proceedings and is carried out at the request of an administrative authority or spontaneously.
17 Following these criteria, it is possible to speak of administrative assistance if assistance is provided between administrative authorities as part of an internal administrative procedure or a procedure outside of an administrative procedure. On the other hand, legal assistance is provided in the context of or in support of proceedings governed by procedural law - often judicial proceedings.
18 Since the proceedings before the FDPIC pursuant to Art. 49 et seq. FADP is a first-instance, non-contentious administrative procedure - and not a (court) procedure regulated by procedural law - official cooperation takes the form of administrative assistance. For this reason, legal assistance is not addressed in Art. 54 FADP. Administrative assistance also includes the enforcement of (precautionary) measures that the FDPIC may order as part of an investigation.
19 Art. 54 FADP only covers administrative assistance between Swiss authorities. Cross-border assistance falls under the regulation on international administrative assistance (Art. 55 FADP).
20 Furthermore, not all assistance within an internal administrative procedure or outside of an administrative procedure is covered by administrative assistance. The assistance provided within the scope of administrative assistance serves to fulfill the statutory duties of the requesting authority. General forms of cooperation or certain cooperation arrangements between authorities do not constitute administrative assistance. Such cooperation exists when different authorities are responsible for dealing with a specific matter. Within the scope of application of the FADP, cooperation is governed by Art. 53 FADP.
21 Finally, administrative assistance is always directed at other authorities. It is not personal. If the FDPIC requests assistance from an official with specific expertise as part of an investigation, the provisions on expert opinions apply. Based on Art. 52 para. 1 FADP, Art. 12 lit. e APA in conjunction with Art. 57 et seq. Art. 57 ff. BZP apply.
F. Limitations
22 Art. 54 FADP establishes a legal obligation of the authorities concerned to provide administrative assistance. However, information and personal data may only be exchanged insofar as this is permitted by official secrecy and the requirements of the protection of fundamental rights, data protection and administrative assistance, which overlap in part, are complied with.
1. Official secrecy
23 Official secrecy is the first barrier to administrative assistance. Official secrecy has been greatly relativized by the principle of publicity: Information must either be explicitly designated as secret under the FoIA or there must be weighty interests to counter the principle of publicity. The authorities may now pass on all information to other authorities that they would also have had to make available to private individuals on the basis of the principle of publicity. Nevertheless, statutory confidentiality obligations can be an obstacle to the disclosure of information to other authorities (Art. 36 para. 6 lit. b FADP). Such confidentiality obligations result on the one hand from official secrecy protected by criminal law (Art. 320 SCC), professional secrecy (Art. 321 SCC), manufacturing and business secrecy (Art. 162 SCC) or tax secrecy (Art. 110 DBG). On the other hand, under personnel law, public sector employees are prohibited from disclosing professional and business matters which, by their nature or due to legal provisions or instructions, must be kept secret (Art. 22 BPG in conjunction with Art. 94 BPV). Official secrecy also applies to civil servants from other offices who are obliged to maintain confidentiality: It is therefore a breach of official secrecy if the civil servant discloses a secret to another office within or outside his or her department or to a superior to whom he or she is not directly subordinate. There is no violation of official secrecy if there is a justification. This is the case if the disclosure of the information is expressly permitted in a substantive law or the disclosure of the secret is permitted by the written consent of the superior authorities.
24 Art. 54 FADP does not expressly address the question of whether the provision permits a breach of the statutory duty of confidentiality. In our opinion, the provision cannot be understood as a blanket authorization to disclose statutory confidentiality obligations by way of administrative assistance, otherwise the confidentiality obligation could be lifted solely by request from another authority. In the absence of a more specific legal provision, Art. 36 FADP can be applied analogously with regard to information other than personal data. According to para. 6 lit. b, federal bodies may refuse to disclose information, restrict it or attach conditions to it if this is required by statutory confidentiality obligations. In our opinion, the requested authority must therefore also weigh up the interests in connection with the granting of administrative assistance. If, as has been seen, Art. 54 FADP does not in itself constitute a sufficient legal basis for the disclosure of information and personal data, disclosure is only permitted in accordance with Art. 36 para. 2 if it is indispensable for the fulfillment of legal tasks (lit. a) or if there are other reasons, such as the consent of the person concerned (lit. b). A balance must always be struck between the interest in administrative assistance and the conflicting interests in confidentiality (see also Art. 36 para. 6 lit. a FADP). In connection with this balancing of interests or to protect statutory confidentiality obligations (Art. 36 para. 6 lit. b FADP), it may also be appropriate to make the disclosure of personal data subject to conditions or to anonymize the personal data. The provision of administrative assistance must also be permitted if there is another justification in accordance with Art. 320 SCC, such as the authorization of the superior authority (Art. 320 no. 2 SCC).
2. Fundamental law requirements
25 Another barrier to administrative assistance is the protection of fundamental rights. For example, Art. 13 para. 2 FC protects personal data, whereby the material scope of protection also includes the disclosure of such data to third parties. The disclosure of personal data to other authorities therefore generally constitutes an encroachment on the fundamental rights of the persons concerned. Assistance that interferes with the fundamental rights of private individuals in the context of administrative assistance must satisfy the requirements of Art. 36 FC. In these cases, Art. 36 para. 1 FC requires a sufficient legal basis for administrative assistance. While federal authorities - as well as the FDPIC - must comply with the FADP when providing administrative assistance, cantonal authorities that provide administrative assistance to the FDPIC are subject to the respective cantonal data protection laws. The other conditions for interference in the form of overriding public interest and proportionality must also always be observed when disclosing personal data to other authorities. Finally, the authorities are also bound by the principles of the rule of law (Art. 5 FC) when providing administrative assistance that does not interfere with fundamental rights. These include, for example, the principle of legality, the requirement of public interest and the principle of proportionality. The federal legislator has incorporated the constitutional requirements for the disclosure of personal data into the Data Protection Act and further specified them.
3. Principle of purpose limitation
26 In addition to the requirement of a legal basis for the disclosure of personal data, the FADP provides for purpose limitation (Art. 6 para. 3 FADP). The further use of personal data as a result of administrative assistance may often not be in line with the purpose limitation of the original data collection and processing under data protection law. However, this does not rule out the possibility of personal data being used for other purposes at a later date, provided there is a legal basis or justification for this. Art. 54 FADP in conjunction with Art. 36 FADP constitutes such a legal basis, which allows the authorities to deviate from the original purpose limitation when disclosing personal data.
4. Principle of speciality
27 Another manifestation of the principle of purpose limitation has emerged in the context of international legal and administrative assistance. Like the purpose limitation under data protection law, it serves to ensure the proportionate handling of information and personal data. This requirement, known as the principle of specialty, demands that the information and personal data may only be used by the requesting authority for the purposes for which they were transmitted by the requested authority. To this end, the requesting authority must specify the purpose for which the requested information or personal data is required. Even if the principle of specialty is often only discussed in connection with international administrative assistance, it is just as relevant for national administrative assistance. The purpose limitation under administrative assistance law therefore has a restrictive effect on the disclosure of information and personal data.
G. Enforcement and legal protection
28 The nature of administrative assistance as a partnership between authorities means that the authorities are on an equal footing in organizational terms and that there is therefore no relationship of subordination between them. The FDPIC cannot enforce his request for administrative assistance against the federal authorities or the cantonal authorities with an internal administrative directive or order. Nor can he determine how, by when and to what extent administrative assistance must be provided; conversely, the same applies to administrative assistance provided by the FDPIC to other authorities. The modalities of administrative assistance must be mutually agreed between the authorities involved. The situation is different if the FDPIC orders investigative measures vis-à-vis federal bodies in accordance with Art. 50 para. 3 FADP, in which case these measures are not covered by administrative assistance. In this case, the federal body does not provide assistance to the FDPIC, but is obliged to cooperate as the addressee of the investigation.
29 Administrative assistance takes place between the authorities. If the requested authority refuses to disclose the information or personal data after examining a request, the requesting authority cannot contest the decision. The FADP does not grant the FDPIC or the other authorities mentioned in para. 2 a special right of appeal within the meaning of Art. 48 para. 2 APA. However, it is conceivable that in the event of a persistent refusal by the requested authority, the requesting authority may turn to its superior body or higher supervisory authority by means of a supervisory complaint. It is then up to the supervisory authority to enforce compliance with the obligation to provide administrative assistance in the event of unjustified resistance and, if necessary, to issue the requested authority with the necessary instructions. Authorities that do not belong to the same municipality may appeal to the Federal Supreme Court on the basis of Art. 120 para. 1 lit. b BGG. If there is a dispute between the FDPIC and a cantonal enforcement authority regarding the existence and scope of the obligation to provide administrative assistance in accordance with Art. 54 FADP, legal action may be taken.
30 Even if administrative assistance takes place between authorities and can therefore be described as an "[...] act within the authority [...]", it can have a reflex effect on private individuals. The official acts carried out in the context of administrative assistance may affect legal positions or interests worthy of protection of the parties to the proceedings or third parties. This includes, for example, the transfer of personal data in the context of informational administrative assistance or the use of coercive measures in the context of enforcement. Art. 54 FADP does not state whether the authorities are obliged to conduct administrative proceedings when providing administrative assistance. According to Art. 52 para. 1 FADP, the investigation procedure is governed by the APA. It follows that - if the FDPIC requests administrative assistance as part of the investigation procedure - and this has an impact on the rights and obligations of the data subjects, the procedural rights guaranteed in the APA come into effect. The decision of the requested authority to provide administrative assistance is to be regarded as an order if the interests of private individuals worthy of protection are affected. In this case, the private individuals must have the opportunity to participate in the proceedings. For this purpose, the private person has party status and must be heard in accordance with Art. 30 APA. The decision to grant administrative assistance then constitutes an order in accordance with Art. 5 APA, which must be substantiated and contain information on the right of appeal (Art. 35 APA).
31 With regard to the point in time at which procedural rights are exercised, various differentiations can be made according to doctrine and case law:
The requesting authority does not have to hear the parties to the proceedings or third parties if it requests administrative assistance from other authorities. The waiver of administrative proceedings can be justified by the legal protection subsequently granted in the main proceedings. This allows the party to the proceedings to assert its rights before the FDPIC as the requesting authority at a later date. If the FDPIC bases his decision during the investigation procedure on the information obtained through administrative assistance, he must inform the party to the proceedings and grant them access to the files. On this basis, the party to the proceedings may contest the accuracy of the information or the permissibility of obtaining and disclosing the information.
The decision of the requested authority to provide administrative assistance is generally made in the form of an order if the interests of private persons worthy of protection are affected. However, it does not have to issue an order if it is obliged to provide administrative assistance and has no discretion. However, administrative proceedings are often appropriate. This is particularly the case if the statutory administrative assistance provision opens up a margin of discretion, which is conceivable in a large number of constellations: Such a margin of discretion may arise if the requested authority must decide whether the disclosure of the information and personal data is actually necessary for the fulfillment of the requesting authorities' statutory task. Furthermore, when disclosing personal data, the proportionality of the disclosure must always be examined due to the interference with Art. 13 para. 2 FC and, if necessary, conditions or other restrictions (e.g. redactions) must be imposed. Finally, since Art. 54 FADP does not comment on statutory confidentiality obligations, it may be necessary in individual cases to weigh up the interests between the indispensability of providing assistance in accordance with Art. 36 para. 2 lit. a FADP and any conflicting interest in confidentiality. However, as there is also subsequent legal protection for parties to proceedings in these cases, it is argued in the doctrine that administrative proceedings are only necessary if there is a threat of irreparable disadvantage beyond the scope of assessment. If both conditions are met, the party to the proceedings should be given a fair hearing and thus legal protection before the requested authority decides whether to grant administrative assistance.
Finally, the requested authority must also take into account the legal position of third parties. Insofar as personal data is transmitted in the context of administrative assistance that affects the rights and obligations of persons not involved in the main proceedings, they must be granted party status. As there is no possibility of subsequent legal protection for third parties, procedural rights must be observed at the time the personal data is disclosed. This is only possible if they are heard in advance and a reasoned and contestable decision is issued.
32 The appeal procedure is governed by the APA. The rulings are subject to appeal to the Federal Administrative Court in accordance with Art. 44 APA. In the final instance, an appeal in public law matters may be lodged with the Federal Supreme Court in accordance with Art. 82 et seq. BGG; decisions concerning domestic administrative assistance can be appealed against without restriction. Only decisions in the area of international administrative assistance, with the exception of administrative assistance in tax matters, are excluded from appeal in matters of public law. Furthermore, the exception of Art. 83 lit. v BGG only applies to decisions of the Federal Administrative Court on differences of opinion between authorities in the context of domestic administrative assistance. Appeals by private parties are not affected.
33 The acts of enforcement themselves constitute real acts, which is why they are generally not contestable. In this context, only a supervisory complaint is possible. This can be lodged either with the competent cantonal supervisory authority or with the FDPIC. As the requesting federal authority, the latter remains responsible for enforcement, which is why it must also monitor the proper execution of enforcement assistance by the cantons.
II. Administrative assistance in favor of the FDPIC (para. 1)
34 Para. 1 lays down the principle that the federal and cantonal authorities shall provide the FDPIC with the information and personal data necessary for the performance of his statutory duties. Para. 1 has a dual nature in that, on the one hand, it authorizes the FDPIC to obtain administrative assistance from other authorities. On the other hand, it obliges the requested authorities to provide administrative assistance.
35 The requested authorities are federal authorities and cantonal authorities. The municipal authorities are not expressly mentioned in Art. 54 para. 1 FADP. Baeriswyl infers from this that the municipal authorities are not obliged to provide administrative assistance to the FDPIC. This view is supported by a systematic interpretation: The municipal authorities are explicitly mentioned in para. 3, but not in para. 1. Furthermore, according to widespread opinion, the municipalities are not addressees of Art. 44 FC, which regulates the principles of administrative assistance in the federal state. However, there are good reasons for a contrary view: Firstly, there is no indication in the materials that the national administrative assistance in Art. 54 FADP is to be understood in such a way that municipal authorities are excluded from the term "cantonal authorities". Secondly, it seems questionable whether the exclusion of municipal authorities is expedient with regard to the function of administrative assistance - namely to enable the FDPIC to fulfill his tasks in the context of consistent enforcement of data protection - especially since the scope of the transfer of public tasks to the municipalities is left to the cantons and thus authorities with far-reaching areas of responsibility would be excluded from the administrative assistance obligation. Especially in view of the purpose, it is reasonable to assume that the municipalities should also provide administrative assistance to the FDPIC.
36 The content and scope of the information to be provided are not described in more detail in para. 1. The provision refers to information and personal data that are required to fulfill the FDPIC's statutory duties. The explicit mention of personal data in para. 1 at least clarifies that the FDPIC may be provided with all information relating to an identified or identifiable natural person in the context of administrative assistance. This provision is supplemented by Art. 39 lit. c FADP, according to which the FDPIC may process personal data, including particularly sensitive personal data, in the context of cooperation with federal, cantonal and foreign authorities. The reference to information makes it clear that Art. 54 FADP refers to informational administrative assistance. In addition to the expressly mentioned disclosure of personal data, this also refers to the disclosure of factual data (see n. 13). Administrative assistance in the context of enforcement measures is mentioned in Art. 50 para. 3 FADP. Due to the broad wording of para. 1, the content of the type of information and personal data is primarily determined by an interpretation based on the FDPIC's statutory tasks.
37 The FDPIC's statutory tasks are diverse and are listed in Chapter 7 of the FADP. First of all, the investigation of breaches of data protection regulations in accordance with Art. 49 et seq. FADP. Other tasks of the FDPIC include keeping a register of the processing activities of federal bodies (Art. 56 FADP) and annual reporting to the Federal Assembly (Art. 57 FADP). Art. 58 FADP then lists additional tasks in a non-exhaustive manner. It is not clear from the outset for which tasks and to what extent the FDPIC requires information and personal data from other authorities. It will therefore become clear in practice in which situations and for which actions the FDPIC is dependent on such information or personal data to fulfill a legal task. However, it stands to reason that the FDPIC will request administrative assistance from federal or cantonal authorities when investigating breaches of data protection regulations. Administrative assistance is a key instrument both for clarifying the facts and for enforcing administrative measures in accordance with Art. 51 FADP. The FDPIC may, for example, request assistance from the cantonal police authorities in carrying out investigative measures.
38 The disclosure of information or personal data referred to in para. 1 may take place spontaneously or upon request. However, the wording of the provision is far less clear than, for example, Art. 112 para. 1 DBG, which expressly refers to both forms of administrative assistance. Spontaneous administrative assistance occurs when an authority is legally obliged to inform another authority ex officio of facts of which it has knowledge. Other authorities can, for example, inform the FDPIC on their own initiative that data processing by a federal body or a private individual could violate data protection regulations. On the other hand, administrative assistance can also be provided at the request of the FDPIC. Administrative assistance on request is the classic concept of administrative assistance.
39 As the other authorities are obliged to disclose the information or personal data, in this case the assistance is mandatory and not at the discretion of the requested authority. In terms of wording ("disclose"), the provision is comparable to Art. 32 para. 1 ATSG and Art. 87 para. 1 BVG, which also prescribe mandatory assistance. However, it should be noted that there is only an obligation to provide administrative assistance if it is necessary to disclose the information and personal data. This presupposes that the requested authority is authorized to check the necessity of the disclosure. Administrative assistance may only be provided if and insofar as the FDPIC would not be able to fulfill its respective legal mandate without the information or personal data, or would only be able to do so with considerable additional effort. Accordingly, Kerboas/Lennman also state that a mere improvement or better efficiency in the fulfillment of the statutory task cannot serve as justification for the disclosure. If the necessity is not given, there is also no obligation to disclose the information or personal data. For the disclosure of personal data (Art. 36 para. 3 FC) as well as information (Art. 5 para. 2 FC), this already follows from the principle of proportionality (see n. 25). In addition, a refusal to provide administrative assistance or, if necessary, disclosure subject to conditions or restrictions (e.g. redactions) may be justified (see n. 24).
40 In contrast to the provisions on administrative assistance in other substantive laws (Art. 32 para. 1 ATSG, Art. 45 para. 1 BüG or Art. 87 para. 1 BVG), Art. 54 FADP does not expressly stipulate that the requesting authority must submit a written and reasoned request to the requested authority. A written and reasoned request is required, for example, where there is an increased need for legitimacy for the disclosure of the information in question. This is the case, for example, in social insurance law, as the disclosure of data constitutes a deviation from the principle of confidentiality; in the naturalization procedure, the data required to assess the acquisition or loss of Swiss citizenship is often particularly sensitive personal data within the meaning of Art. 5 lit. c FADP. Not all information obtained by the FDPIC is subject to such a legitimation requirement. The waiver of the requirement for a written request in para. 1 expresses the fact that the FDPIC's scope for action should not be excessively restricted and that there is an interest in the simplest and most efficient possible enforcement of data protection. Especially when the FDPIC requests simple information from other offices, a written request is not mandatory. If the FDPIC requests the disclosure of personal data or if the information is to be used as part of an investigation into breaches of data protection regulations, the view expressed here is that the request should be made in writing - also in view of the legal protection claims of data subjects (see n. 30 f.).
41 Art. 54 FADP does not provide a basis for mass information on a large number of persons. Under the old FADP, the FDPIC stated in an opinion: "More comprehensive data disclosures, for example by means of (electronic) lists and the transfer to other data collections, require an explicit legal basis in which the necessary limits of data processing and security are also to be regulated." In the absence of express authorization in Art. 54 FADP, it can be assumed that the FDPIC may not obtain or disclose mass information in connection with personal data. It can also be assumed that requests without a precise reason or specific question (so-called "fishing expeditions") are not permitted in the case of administrative assistance upon request. With reference to Art. 19 para. 1 lit. a aDSG (which today corresponds to Art. 36 para. 2 lit. a FADP), the Federal Administrative Court has stated that "[t]he requesting authority [...] must describe the relevant facts to the requested authority, specifically identify the information and documents requested and state the reason for the request [...]". In our opinion, this also applies in connection with Art. 54 FADP.
42 A reason must always be given, even if this requirement is not expressly stated in para. 1: On the one hand, the requested authority must be able to assess the necessity of disclosing the information and personal data. Secondly, the principle of purpose limitation under administrative assistance law (principle of specialty) requires an indication of the purpose for which the requested information or personal data is required (see n. 27). If administrative assistance is provided at the request of the FDPIC, the FDPIC must therefore always justify the extent to which he needs the information or personal data to fulfill his legal duties in the specific individual case.
III. Administrative assistance for the benefit of other authorities (para. 2)
43 The FDPIC shall disclose information and personal data to certain authorities insofar as this is necessary for the fulfillment of their statutory duties. Para. 2 provides an exhaustive list of the authorities for which the FDPIC is obliged to provide administrative assistance.
44 Art. 54 FADP serves as the legal basis for the mutual provision of administrative assistance. Therefore, with regard to the content and scope of the information ("information and personal data"), the necessity of disclosure and the further modalities, reference can be made to the comments on para. 1. As with para. 1, administrative assistance can be provided both spontaneously and at the request of the authorities named in para. 2. In the case of a request, the FDPIC is obliged to provide assistance. In other words, the disclosure of information and personal data is not at the discretion of the FDPIC. The prerequisite for this is, however, that the disclosure is necessary and that there are no other barriers to it. For example, the FDPIC is also subject to official secrecy under Art. 22 BPG.
A. Administrative assistance to data protection authorities (lit. a)
45 Para. 2 lit. a establishes reciprocity for the transfer of information and personal data in relation to other data protection authorities: Just as the FDPIC can request information and personal data from these authorities in accordance with para. 1, the other data protection authorities can request information from the FDPIC. The authorities responsible for data protection in Switzerland are authorities whose legal mandate also lies in the supervision and enforcement of data protection. This results from the relevant legal bases at federal, cantonal or municipal level.
46 The requirements of Art. 15 Convention 108+ can be used to specify the concept of data protection authorities. Art. 15 para. 5 Convention 108+ stipulates, among other things, that the supervisory authority shall act with complete independence and impartiality and not be bound by instructions when performing its tasks and exercising its powers. Against this background, independent cantonal and communal data protection authorities as well as other public-law organizations can be considered as independent data protection authorities within the meaning of Art. 15 para. 5 Convention 108+.
47 Data protection advisors to federal bodies (Art. 10 para. 4 FADP) exercise their function in relation to the federal body in a professionally independent manner and are bound by instructions in accordance with Art. 26 para. 1 lit. b DPA. However, they do not have the status of an authority.
48 In addition to the disclosure of information and personal data at the request of another authority in individual cases, an exchange of information takes place via the following institutionalized mechanisms and forums. These ensure a mutual flow of information between the FDPIC and the cantonal and communal data protection authorities and enable the authorities to contribute their concerns and expertise.
In the privatim association, the independent data protection authorities of Switzerland's public bodies come together to form the Conference of Swiss Data Protection Commissioners. This promotes cooperation between the cantons, municipalities and the Confederation in the area of data protection through a constant exchange of information. The association expresses its views on data protection issues in the form of statements, consultation responses, guidelines and information sheets. For example, privatim has published a leaflet on cloud-specific risks and measures and commented on the decision of various cantonal governments to use "Microsoft 365" in the administration. Together with the FDPIC, the association has also updated its guidelines on the application of data protection law to the digital processing of personal data in connection with elections and votes in Switzerland. This is a general form of cooperation between the authorities.
Based on Art. 111g AIG, Art. 102d AsylG and Art. 8b FPI, the cantonal data protection authorities and the FDPIC work together within the scope of their respective competences with a view to coordinated supervision of the processing of personal data in the context of Schengen/Dublin cooperation. To this end, the FDPIC has set up a coordination group of Swiss data protection authorities in the context of the implementation of the association agreements. The Coordination Group is dedicated to the exchange of information necessary for the effective supervision of data processing, discusses difficulties in the interpretation and application of legislation, analyses problems that may arise in the exercise of supervision or in connection with the rights of data subjects, and draws up harmonized proposals and opinions with a view to finding common solutions.
B. Administrative assistance to law enforcement authorities (lit. b)
49 In accordance with Art. 65 para. 2 FADP, the FDPIC has the right to report suspected violations of the criminal provisions of Chapter 8 of the FADP. In contrast, reports on breaches of data security in accordance with Art. 24 FADP may only be used in criminal proceedings against the person subject to the reporting obligation with their consent.
50 In the interest of effective enforcement of data protection, the FDPIC can use this right of notification to work towards uniform application of the FADP. He can constitute himself as a private plaintiff in the context of cantonal criminal proceedings. In addition, he can also challenge discontinuation orders and appeal against cantonal decisions.
51 Reporting the alleged offense to the competent cantonal prosecution authority generally involves the disclosure of personal data. This involves particularly sensitive personal data in accordance with Art. 5 lit. c no. 5 FADP. Art. 54 para. 2 lit. b FADP provides the necessary legal basis for the disclosure of personal data.
C. Administrative assistance to federal authorities and cantonal and communal police bodies (lit. c)
52 According to Art. 50 para. 3 FADP, the FDPIC may call in other federal authorities and cantonal or communal police bodies to implement the measures under Art. 50 para. 1 FADP. The measures consist of the FDPIC being able to order access to all information, documents, lists of processing activities and personal data required for the investigation (lit. a), access to premises and facilities (lit. b), hearings of witnesses (lit. c) or expert opinions (lit. d). However, this is only possible if it has opened an investigation and the private person or federal body does not comply with its duty to cooperate. Administrative assistance by the cantonal or communal police bodies takes the form of enforcement measures that serve to enforce the FDPIC's official order. This administrative assistance is provided for the benefit of the FDPIC and therefore falls under Art. 54 para. 1 FADP. Art. 54 para. 2 lit. c FADP provides the necessary legal basis for the FDPIC to transmit the necessary information and personal data to the aforementioned authorities for the effective enforcement of his orders.
53 For the enforcement of measures under Art. 51 FADP, the FDPIC may also disclose information and personal data to the federal authorities and cantonal and communal police bodies that are necessary for the performance of their statutory duties. Art. 51 provides for administrative measures and confers powers of disposal on the FDPIC. According to para. 1, in the event of a breach of data protection regulations, he may order that the processing be adapted, interrupted or discontinued in whole or in part and that the personal data be deleted or destroyed in whole or in part.
54 In contrast to the enforcement of measures ordered under Art. 50 FADP, the enforcement of FDPIC orders under Art. 51 FADP is not expressly regulated in the FADP. This is governed by the APA. At least in relation to private individuals, this is already evident from the fact that the FDPIC has powers to issue orders, which means that he is subject to the APA in accordance with Art. 1 para. 2 lit. c APA. The APA is already applicable to administrative proceedings under the APA in the absence of applicable exceptional provisions pursuant to Art. 2 f. APA are applicable to administrative proceedings of the FDPIC. Art. 52 para. 1 FADP once again expressly confirms the applicability of the APA to the FDPIC's administrative proceedings. This provision is primarily for clarification purposes.
55 Art. 41 APA provides the necessary legal basis for the enforcement of orders. The FDPIC can make use of the - admittedly non-exhaustive - catalog of enforcement measures contained in the provision. The FDPIC must adhere to the procedure provided for in Art. 41 APA, which includes the threat of enforcement with the setting of a (subsequent) deadline, the determination and enforcement of the coercive measures. In the event of imminent danger, he may dispense with the threat of coercive measures and the granting of a deadline for compliance.
56 If the FDPIC orders the partial or complete deletion or even destruction and the private person or federal body refuses, he may arrange for the deletion or destruction himself in accordance with Art. 41 para. 1 lit. a and lit. b APA.
57 The FDPIC may call in federal authorities and cantonal and communal police bodies for enforcement. Based on Art. 54 para. 2 lit. c FADP, the FDPIC may transmit the necessary information and personal data to the aforementioned authorities so that they can carry out the enforcement action.
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